The Branick and Devenzio Law Firm - For Family, Criminal,
Disability & Injury Law & Mediation in the Greater Port Arthur Area

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Branick, Walston & Devenzio, Attorneys, Nederland, TX
home > Mediation

Mediation
and Alternative Dispute Resolution

Contact Trent Devenzio for Mediation Services


Trent has been mediating cases both large and small for over 25 years. Using a common sense approach, Trent has successfully assisted with the resolution of thousands of cases.


Types of Services


• Mediation of all civil disputes.
• Arbitration of personal injury claims and lemon law claims.
• Special Master services upon Court appointment.



Facilities/Locations


• We can accommodate a three party mediation in our office located in Nederland, Texas.
• Provision of services in other locations is also available



Cost of Services


• The cost for mediation services is $110.00 per hour per party.
• The total cost of the mediation will be invoiced after the mediation.



Briefs Are Encouraged and Should Include the Following:


• The names of those persons who will be present at the mediation.
• The status of the negotiations.
• A brief summary of the liability facts of the case.
• Any issues that bear upon medical causation.
• The nature and extent of the damages.
• The value of any applicable liens.



Scheduling


• Please contact Kathy Borne at 409-724-7446 or by e-mail at KathyBorne@sbcglobal.net to schedule an appointment.


HOW TO INSURE A SUCCESSFUL MEDIATION


Over the past 25 years as I have mediated cases, I have observed issues, factors and concerns that dictate whether a given mediation will be successful or not. While the following thoughts are not exhaustive, if all parties address these issues and concerns expressed herein, it is expected that every case can be settled during mediation.


The following represents the most common reasons why cases do not settle at mediation:

Ripeness
While it may seem obvious, it is important that only cases that are ripe for mediation should be scheduled for a session. Parties are encouraged to evaluate whether all parties are prepared to resolve the claim relative to the status of discovery, the availability of all relevant evidence, the current fund of knowledge of the decision makers and whether the parties are on common ground regarding the important issues.


Client Preparation
Over the years, it has become clear that pre-mediation client preparation is crucial to a successful mediation. In this regard, it is important to explain the nature of mediation to a person who has not participated in mediation before. To the un-initiate, you may want to discuss the artificial nature of the process and let them know that it is a mechanical process, inform them that the last offer is all that matters, and that they should keep emotion and egos out of the process.


Explain the Process
To those parties that are new to the process, it can be helpful to explain the mediation process from opening session to the final agreement. Unlike arbitration, most people do not know what mediation is or how it works. The more comfortable they are with the process, the more likely they are to buy into the process. Explain confidentiality as you encourage your clients to open up when talking with the mediator and explain that the more insight the mediator has into the parties, the better he or she will be at discussing the strengths of the parties position in the other room.


Discuss Strengths and Weaknesses Before the Mediation
It is vital that you discuss strengths and weaknesses of a case with your clients before the mediation by introducing the arguments that the other party will pose during the mediation. By doing so, you can manage expectations. In this regard, it can be helpful to discuss with the party what the case is worth from a jury stand-point and discuss the difference between legal reality and their reality.


Explain the Role of the Mediator
Finally, when preparing an inexperienced participant, explain the role of mediator and let the parties understand that the mediator is there as a neutral party; however, let them know that the mediator will talk about the good and bad parts of their case.


Client Control
If you have a difficult client, let the mediator know. This acknowledgment informs the mediator that he or she needs to take extra care to establish rapport with the difficult or combative party.


Opening
I almost always encourage parties to have an opening session. While there are exceptions, an opening session will quickly get all of the issues out on the table and will allow the mediator to maintain the appearance of neutrality during the private sessions. Therefore, once we start reality testing, the parties will not look at the mediator as the bad guy who is slashing their case – thereby causing dis-trust in the mediator.


Exchange Evidence Prior to the Mediation
Another important consideration is to convey any and all evidence to the opposing party well in advance of the mediation. This is especially important when negotiating with an insurance adjuster who is required to obtain settlement authority from a supervisor prior to gaining mediation settlement authority.


Damage Presentation Considerations
In regard to the presentation of damages, it can be helpful for Plaintiffs to provide fresh real life examples of pain or impairment during the opening session. As for medical expenses always be ready with the net amount of the bills in light of Haygood v De Escabedo. When presenting or defending a claim for decreased earning capacity, always be ready with the net amount of the lost wage claim pursuant to Tex. Civ. Prac. & Rem Code section 18.091.


Always File a Brief
It is suggested that all parties file a written brief with the mediator well before the session is scheduled. The brief empowers the mediator to effectively reality test with credibility because the mediator will be well educated about the issues. Reality testing of course is the process by which the mediator explores the potential negative outcomes with your clients to make sure that they are making an informed decision as they reject a possible mediated resolution.


Choose a Style of Mediation that Will Work for Your Case
As you prepare for mediation, it can be helpful to decide which style of mediation would be best for your particular case. Specifically, consideration should be given to whether a competitive style or a collaborative style mediation would work best depending upon the personalities of the attorneys, the personalities of the parties, the facts, the law, and the nature of the previous negotiations.


Competitive style mediation is defined as, “a preference for dominating and forcing one’s decision on others. Those who use a competitive style are not necessarily uncaring about others, but they value their self-interest or getting the job done more than they value how other people feel about the situation……Because the objective is “win-lose” in favor of oneself, one gains at the other’s expense.” Roxane Lulofs, Conflict from Theory to Action 2000. Quoting Dudley Cahn. I would submit that most of the mediation we have in Southeast Texas revolve around the competitive style of mediation; this is borne of the litigation process and this is the style that we are most comfortable with at this time.


A collaborative style is a, “preference for solving problems and developing mutually satisfying agreements….. Collaboration is a style of win-win in which one’s attempts to satisfy personal concerns and the other’s concerns and one’s motivation regarding trust of others are also maximized. Roxane Lulofs, Conflict from Theory to Action 2000. Quoting Dudley Cahn. I would submit that most of the mediations in Southeast Texas actually start and finish with the collaborative style, but the middle is focused on the competitive style as the opening session starts as a veiled attempt at collaboration and we often settle when the parties decide to collaborate to end the mediation.


If the parties are intent on having a competitive style mediation, plan on a full day mediation to allow the mediation to evolve from a competitive mediation to a collaborative mediation.


Based upon my observations, the attorneys and parties are much more satisfied with a collaborative mediation from start to finish and the success rate for mediations is a lot higher when all are engaged in collaborative mediations.


Understand the Liens
Experience has taught that the biggest reason that cases do not settle at mediation is a lack of a firm grasp of contractual and statutory liens. For this reason, consider reducing liens before mediation. As for a potential Medicare Set Aside, it can be helpful to get an agreement with the opposing attorney as to whether a set aside will be done or not, and, if so, how much will be set aside, and whether the set aside amount will be handled by a 3rd party or by the Claimant.